Law professor Charles Nesson and John Palfrey, director of the Berkman Center for Internet & Society (which Nesson co-founded), made their position clear. “Recently, the president of the Recording Industry Association of America, Cary Sherman, wrote to Harvard to challenge the university administration to stop acting as a ‘passive conduit’ for students downloading music,” they wrote in 2007. “We agree. Harvard and the 22 universities to which the RIAA has sent ‘pre-litigation notices’ ought to take strong, direct action… and tell the RIAA to take a hike.”
Those notices were an attempt by the RIAA to get schools involved in the litigation process. Universities would, in theory, pass RIAA settlement letters on to students after being provided with an IP address suspected of illicit file-sharing. The schools would be “doing their part,” while the recording industry got its missives delivered without needing to bother with courts and judges and subpoenas.
“Universities should have no part in this extraordinary process,” wrote Nesson and Palfrey. “The RIAA’s charter is to promote the financial interests of its corporate members—even if that means preserving an obsolete business model for its members. The university’s charter is quite different… The university strives to create knowledge, to open the minds of students to that knowledge, and to enable students to take best advantage of their educational opportunities. The university has no legal obligation to deliver the RIAA’s messages. It should do so only if it believes that’s consonant with the university’s mission.”
It wasn’t quite a declaration of war, but it did amount to an Army unit trotting out a massive howitzer, oiling it up, and firing off some test shots. Powerful interests at Harvard Law were displeased enough by the RIAA actions to speak out, but they weren’t yet ready to play an active role.
That is, until Boston University graduate student Joel Tenenbaum got in touch with Nesson in 2008. Nesson took the case, acting as Tenenbaum’s attorney, but he outsourced the work of research, strategy, and brief writing to a set of eager Harvard Law students. The students would quickly mount an ambitious defense, not just of Joel Tenenbaum, but of the claim that the RIAA legal campaign was unconstitutionally excessive and improper. Armed with a law library, Twitter, a Web site, and caffeine, the students have already made sure that the upcoming Tenenbaum trial will eclipse the Minnesota Jammie Thomas case for sheer spectacle.<Emphasis Mine>
And, if things go their way, the world will get the chance to see it all live on the Web.